The Government appears to be in negotiation with Tory MPs (46 of them at least) who may be prepared to wreck the Levelling-up and Regeneration Bill unless it includes a provision abolishing housebuilding targets for local authorities and abolishing the policy in the NPPF as to the maintenance of a five years’ supply of housing land. No doubt this will end up with some fudged solution adding further (1) uncertainty, (2) complexity and (3) hurdles in the way of housing provision.
But in another part of the forest, assuming they will overcome that local difficulty (aka huge chasm), the Government has brought forward a further set of amendments to the Bill to seek to address the nutrient neutrality problem which has amounted to a de facto veto on housebuilding in many areas of the country (see eg my 23 July 2022 blog post Neutrality: Government Clambers Off The Fence).
A new legal duty on water companies in England to upgrade wastewater treatment works by 2030 in ‘nutrient neutrality’ areas to the highest achievable technological levels.
A new Nutrient Mitigation Scheme established by Natural England, helping wildlife and boosting access to nature by investing in projects like new and expanded wetlands and woodlands. This will allow local planning authorities to grant planning permission for new developments in areas with nutrient pollution issues, providing for the development of sustainable new homes and ensuring building can go ahead. Defra and DLUHC will provide funding to pump prime the scheme.”
“The new legal duty on water and sewerage companies in England to upgrade certain wastewater plants will be introduced via a Government amendment to the Levelling Up and Regeneration Bill. We want these improvements to be factored in for the purposes of a Habitats Regulation Assessment.”
The nutrient mitigation scheme “will be open to all developers, with priority given to smaller builders who are most affected. Developers can also continue to put their own mitigation schemes in place should they choose. Natural England will work with, not crowd out, new and existing private providers and markets for nutrient offsets wherever they exist.
The scheme is due to open in the Autumn. All affected areas can continue to access practical support from the government and Natural England in meeting nutrient neutrality requirements. Natural England will deliver the scheme by establishing an ‘Accelerator Unit’, with the support of Defra, DLUHC, the Environment Agency and Homes England.
This announcement will support the delivery of the tens of thousands of homes currently in the planning system, by significantly reducing the cost of mitigation requirements. The mitigation scheme will make delivering those requirements much easier for developers.”
The possible bad news? Not so much bad news but an inspector’s appeal decision letter which confirms that the Habitats Regulations’ assessment requirements do not just apply when an application for planning permission is determined but, if an assessment was not carried out at that stage, at reserved matters/ conditions discharge stage. This is of course one of the huge current frustrations.
The decision letter, dated 24 November 2022, is here and is summarised by Landmark Chambers here.
Charlie Banner KC was for the appellant and his submissions were in line with an opinion previously provided for the HBF and widely circulated. The issues are not straight-forward and we wait to see whether the question will now come before the courts.
Short blog post this week – too busy, and to0 much football to watch.
Commentary about the Government’s adjusted direction for planning reform has been running on mist and speculation since Michael Gove’s return as Levelling Up Secretary of State on 25 October 2022, pending the Chancellor’s Autumn Statement on 17 November 2022.
But now it’s all systems go. As well as the Autumn Statement we now have:
Michael Gove’s written ministerial statement giving an update on the Levelling-up and Regeneration Bill (17 November 2022)
The Secretary of State is due to appear before the LUHC Select Committee on 21 November and the Bill will have its report and third reading stages on 23 and 28 November before heading to the Lords.
The Autumn Statement itself contained little in relation to planning reform, other than to “refocus” investment zones:
“3.16 The government will seek to accelerate delivery of projects across its infrastructure portfolio, rather than focus on the list of projects that were flagged for acceleration in the Growth Plan. The government will continue to ensure that all infrastructure is delivered quickly through reforms to the planning system, including through updating National Policy Statements for transport, energy and water resources during 2023, and through sector-specific interventions.”
“3.25 The government will refocus the Investment Zones programme. The government will use this programme to catalyse a limited number of the highest potential knowledge-intensive growth clusters, including through leveraging local research strengths. The Department for Levelling Up, Housing and Communities will work closely with mayors, devolved administrations, local authorities, businesses and other local partners to consider how best to identify and support these clusters, driving growth while maintaining high environmental standards, with the first clusters to be announced in the coming months. The existing expressions of interest will therefore not be taken forward. The government is grateful to local authorities for their work to develop proposals.”
I recommend two good commentaries on the Autumn Statement:
The amendments tabled to the Levelling-up and Regeneration Bill are potentially significant. To quote from the 18 November 2022 press statement:
“Amendments being tabled will:
Tackle slow build out by developers to make sure much needed new homes are delivered. Developers will have to report annually to councils on their progress and councils will have new powers to block planning proposals from builders who have failed to deliver on the same land.
Improve our environment and enshrine in law an obligation on water companies to clean up our rivers by upgrading wastewater treatment works. Considering all catchments covered by the amendment, our initial estimates indicate that there will be around a 75% reduction in phosphorus loads and around a 55% reduction in nitrogen loads in total from wastewater treatment works, although this will vary between individual catchments. These upgrades will enable housebuilding to be unlocked by reducing the amount of mitigation developers must provide to offset nutrient pollution. This will be accompanied by a Nutrient Mitigation Scheme that will make it easier for developers to discharge their mitigation obligations.
Give residents a new tool to propose additional development on their street, like extensions to existing homes, through ‘street votes’. Planning permission will only be granted when an independent examiner is satisfied that certain requirements, such as on design, have been met and the proposal is endorsed at a referendum by the immediate community. Pilot Community Land Auctions – testing a new way of capturing value from land when it is allocated for development in the local plan to provide vital infrastructure, including schools, roads, GP surgeries, and the affordable housing that communities need.
Enhancing powers for mayors to support them to managing their key route networks and increase transport connectivity across their area.
Help Nationally Significant Infrastructure Projects such as wind farms and new major transport links be delivered more quickly, by enabling a small number of public bodies to charge for their statutory services to help them provide a better, reliable, quality of advice to developers and support faster planning decisions.”
There are some potentially controversial proposals here, for instance local planning authorities would be able to decline to determine an application for planning permission of any prescribed description if the application has been made by someone who “has a connection with” earlier development which “has begun but has not been substantially completed” and where the “local planning authority is of the opinion that the carrying out of the earlier development has been unreasonably slow”.
Begun but not substantially completed, unreasonably slow – sounds to me like the Government’s performance in relation to planning reform….
The press statement doesn’t mention an additional tabled amendment, which would empower the Secretary of State to make such amendments and modifications to existing planning, development and compulsory purchase legislation as in the Secretary of State’s opinion facilitate or are otherwise desirable in connection with their consolidation. That’s one hell of a Henry VIII clause! A Town Legal colleague commented to me that the Delegated Powers and Regulatory Reform Committee will certainly be interested in this one if it reaches the Lords.
More from me on a number of the proposals in due course. In particular, I had really hoped I would never have to tackle community land auctions (again) or street votes.
We still await any announcements about planning policy reform, including as to changes to the NPPF and the future of the standard method for calculating local housing needs. We were left to read between the lines of what was said by Levelling Up Under Secretary of State Dehenna Davison in a Westminster Hall 30 minute debate earlier in the week on housing targets (15 November 2022):
“I know I am preaching to the converted when it comes to the need to modernise our planning system, and I think all MPs understand and get that we need a planning regime that is fit for 2022. […] I also understand that Members are frustrated—they are right to be frustrated—that this has been under discussion not just for months, but for years. We need more houses, and that obviously brings with it an obligation on us in Government to be frank and straight with people that building more houses has implications, both positive and sometimes negative. In some places, it will cause tension, and in some places, it will be a source of relief, but it is our job to be willing to have that dialogue, regardless of how difficult it may be. I am not sure that Governments of all colours have always approached these kinds of conversations in the most productive way. The inconvenient truth is that, for the best part of two decades, demand has outstripped the supply of homes.“
“…If we can get our planning regime right, we can unlock a huge amount of economic growth locally. We want to help local authorities to adopt and implement the best planning approaches for their areas. To achieve that, local authorities will need to be able to better attract and retain planners […] and we want to work further with the sector on that. He was right to highlight that as one of the major challenges facing authorities at the moment.
To incentivise plan production and to ensure that newly produced plans are not undermined, the Government intend to make it clear that authorities do not have to maintain a five-year supply of land for housing where they have an up-to-date plan. As Members would expect, we plan to consult on that. The new measures should have a minimal impact on housing supply, given that newly produced plans will contain up-to-date allocations of land for development, but that will also send a signal that the Government are backing a plan-led approach, provided that those plans are up to date.
There is no getting around the fact that we are in a difficult economic time. We face headwinds from all angles—energy, inflation and interest rate rises—and those have knock-on implications for everything that the Government do, but to my mind, they only serve to underline the need to build more homes and to give generation rent the chance to become generation buy. That is why we have to stand by our commitment to dramatically ramp up housing supply and our manifesto pledge to build a million new homes within the first term of this Parliament”
For additional political colour (blue) see also Michael Gove’s keynote speech at the Centre for Policy Studies’ Margaret Thatcher Conference on growth (16 November 2022)
In this case Holgate J found that the inspector in granting planning permission had taken into account a legally irrelevant consideration in assessing the level of harm caused to the neighbouring Grade I listed St Ann’s Church (paras 60-79). The inspector’s decision had accounted for the fact that the level of harm to the Church could not be further minimised by a different design. The court held however that even if the level of harm was “minimised” by the current design, this said nothing about what that “minimised” level of harm amounts to – harm to a heritage asset might be “minimised” by the design proposed but nevertheless still be “substantial”. Another reminder of the care that needs to be taken by decision makers in relation to the NPPF heritage test heffalump traps (see also for instance my 12 December 2020 blog post, Where’s The Harm In That? Misreporting Heritage Effects).
The Judge dismissed two further grounds of challenge, including a challenge that the inspector had wrongly considered the likely deliverability of the scheme. Holgate J held that there was no reason why deliverability could not be a material consideration in the determination of a planning application/appeal if relevant to the merits of the proposal – in this case, the site was owned by Homes England and this was relevant to the likelihood of delivery given its statutory function to promote regeneration.
(Thanks to my colleague Emma McDonald for her initial summary of the case for our Town Library Planning Court Weekly Updates (subscribe for free here).
No original work from me at all this week because I’m now going to reproduce Landmark Chambers’ summary of the ruling on this important and recurring issue – I had started to draft my own but it was less concise – for any more than this do read the judgment itself):
“In a judgment handed down at 5.30pm this evening, Mr Justice Holgate has dismissed applications by two local planning authorities to continue injunctions previously granted without notice, which had the effect of preventing the use of hotels in the two authorities’ areas to accommodate asylum seekers (including those being relocated from the overcrowded facility at Manston).
The claims were brought by the two councils under s. 187B Town and Country Planning Act on the basis that using the hotels to accommodate asylum seekers would amount to a material change of use, from use as a hotel to use as a hostel. Noting that the mere fact that a hostel was not in the same use class as a hotel did not of itself establish that the change was “material”, and that the distinction between a hotel and a hostel was “fine”, Holgate J nevertheless accepted that there was a serious issue to be tried. However, applying the American Cyanamid balance of convenience, he concluded that the factors in favour of discharging the injunction clearly outweigh those in favour of continuing it. In particular:
1. The distinction between use as a hostel and use as a hotel was fine. Whether there was a material difference depended upon the planning harm identified by the claimants.
2. There would not be any irreparable damage or harm. The use would not cause any environmental damage or any harm to the amenity of neighbouring uses. The buildings would not be altered and there would be no issues relating to traffic generation.
3. Although there is a public interest in enforcement action being taken against breaches of planning control, the integrity of the planning system is not undermined by the normal enforcement regime, which allows alleged breaches to continue while the merits of an appeal are under consideration.
4. The defendant’s conduct was not a flagrant breach of planning control. There were respectable arguments that planning permission was not needed.
5. The Home office was facing an unprecedented increase in the number of asylum seekers, the vast majority of who it was under a duty to accommodate. Without the ability to contract for the use of hotels there was a real risk of some asylum seekers becoming homeless.
6. In the claim brought by Ipswich, the Council’s concerns about the potential impact on tourism were “tepid”.
7. The proposed use would be temporary in nature. If that turned out not to be the case there were “plenty of other weapons in the LPA’s enforcement armoury to tackle the issue”.”
The case concerns the relationship between successive grants of planning permission for development on the same land and, in particular, about the effect of implementing one planning permission on another planning permission relating to the same site.
The facts concerned, in basic summary, a full planning permission for the development of 401 dwellings at Balkan Hill, near Aberdyfi in the Snowdonia National Park, granted in 1967. Development was to be in accordance with a detailed “master plan” showing the proposed location of each house and the layout of a road system for the estate.
Only 41 of the dwellings have been built to date, none in accordance with the masterplan. The developer, Hillside Parks Limited, has applied for and been granted a series of additional planning permissions permitting development which has taken place on parts of the site.
The Supreme Court has followed the Court of Appeal and High Court in concluding that development pursuant to the 1967 planning permission cannotlawfully be continued:
“The courts below were right to hold that the 1967 permission was a permission to carry out a single scheme of development on the Balkan Hill site and cannot be construed as separately permitting particular parts of the scheme to be built alongside development on the site authorised by independent permissions. It is possible in principle for a local planning authority to grant a planning permission which approves a modification of such an entire scheme rather than constituting a separate permission referable just to part of the scheme. The Developer has failed to show, however, that the additional planning permissions under which development has been carried out on the Balkan Hill site since 1987 should be construed in this way. Therefore, that development is inconsistent with the 1967 permission and has had the effect that it is physically impossible to develop the Balkan Hill site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified down to 1987). Furthermore, other development has been carried out for which the Developer has failed to show that any planning permission was obtained. This development also makes it physically impossible to develop the site in accordance with the Master Plan approved by the 1967 permission (as subsequently modified).” (paragraph 100).
Whilst the specific facts of the case are unusual (including a degree of uncertainty as to the intended procedural status and effect of the subsequent planning permissions, several of which on their face are described as “variations” of the 1967 planning permission) the Supreme Court sets down some general principles to be applied to situations concerning overlapping permissions. The judgment clarifies some ambiguities arising from the earlier Court of Appeal judgment, although ambiguities remain.
One ambiguity indeed is as to the extent to which the principles set out apply to outline planning permissions, given passages such as paragraph 20:
“In this case, we are concerned with grants of full planning permission, in relation to which it is to be expected that a reasonable reader would understand that the detailed plans submitted with the application have particular significance.”
On first reading, I draw the following principles from the judgment:
Approval of the Pilkington principle
“In essence, the principle illustrated by the Pilkington case [[1973] 1 WLR 1527, Divisional Court] is that a planning permission does not authorise development if and when, as a result of physical alteration of the land to which the permission relates, it becomes physically impossible to carry out the development for which the permission was granted (without a further grant of planning permission) … Where the test of physical impossibility is met, the reason why further development carried out in reliance on the permission is unlawful is simply that the development is not authorised by the terms of the permission, with the result that it does not comply with section 57(1).” (paragraph 45)
“…([I]n the absence of clear express provision making it severable) a planning permission is not to be construed as authorising further development if at any stage compliance with the permission becomes physically impossible.” (see paragraph 68)
(my emboldening).
Interpretation of planning permissions for multi-unit developments
A planning permission for a multi-unit development is unlikely properly to be interpreted as severable into a set of discrete permissions to construct each individual element of the scheme.
However, see the reference above to the possibility of “clear express provision making it severable”. An early thought in reaction to the judgment is that in relation to large multi-phased planning permissions this may already be the case. Where it is not, it may often be useful in the future for it to be introduced.
The whole development is not unlawful if a proposed development cannot be completed fully in accordance with the planning permission
The Supreme Court doubted that it was correct that “in carrying out a building operation, any deviation from the planning permission automatically renders everything built unlawful, even in relation to a single building” and considered that it was certainly not the case that failure to complete a building operation for which planning permission has been granted renders the whole operation including any development carried out unlawful (To that extent the Supreme Court disagreed with remarks of Lord Hobhouse in Sage v Secretary of State for the Environment, Transport and the Regions [2003] UKHL 22).
Under the Pilkington principle, departures must be material
“The Pilkington principle should not be pressed too far. Rightly in our view, the Authority has not argued on this appeal that the continuing authority of a planning permission is dependent on exact compliance with the permission such that any departure from the permitted scheme, however minor, has the result that no further development is authorised unless and until exact compliance is achieved or the permission is varied. That would be an unduly rigid and unrealistic approach to adopt and, for that reason, would generally be an unreasonable construction to put on the document recording the grant of planning permission – all the more so where the permission is for a large multi-unit development. The ordinary presumption must be that a departure will have this effect only if it is material in the context of the scheme as a whole: see Lever Finance Ltd v Westminster (City) London Borough Council [1971] 1 QB 222, 230. What is or is not material is plainly a matter of fact and degree” (paragraph 69)
How to vary a planning permission
Aside from the specific statutory procedures (section 73 and section 96A – and potentially in due course the additional procedure proposed in the Levelling-up and Regeneration Bill), what else can a developer do where it wishes to depart from the planning permission it has been granted?
“73 … [Counsel for Hillside] also submitted that it would cause serious practical inconvenience if a developer who, when carrying out a large development, encounters a local difficulty or wishes for other reasons to depart from the approved scheme in one particular area of the site cannot obtain permission to do so without losing the benefit of the original permission and having to apply for a fresh planning permission for the remaining development on other parts of the site.
74. In our view, that is indeed the legal position where, as here, a developer has been granted a full planning permission for one entire scheme and wishes to depart from it in a material way. It is a consequence of the very limited powers that a local planning authority currently has to make changes to an existing planning permission. But although this feature of the planning legislation means that developers may face practical hurdles, the problems should not be exaggerated. Despite the limited power to amend an existing planning permission, there is no reason why an approved development scheme cannot be modified by an appropriately framed additional planning permission which covers the whole site and includes the necessary modifications. The position then would be that the developer has two permissions in relation to the whole site, with different terms, and is entitled to proceed under the second.
75. The Authority has argued that, because the planning legislation does not confer any power on a local planning authority to make a material change to an existing planning permission, a later planning permission cannot have the effect of modifying in any material way the development scheme authorised by an earlier permission.
76. The trial judge, HHJ Keyser QC, did not find this argument persuasive and nor do we…”
(my emboldening).
If I have this right, this would be a procedure to fall back on in a situation where the Pilkington principle would otherwise bite i.e. where, even though development will be unchanged pursuant to part of the planning permission (1) that part can’t be shown to be clearly severable from the remainder (or presumably amended via section 96A or section 73 so as to be clearly severable) and (2) it would now be physically impossible to complete the planning permission in accordance with its terms (its original terms or presumably as amended via section 96A or section 73) if a separate permission were to be granted in relation to part of the development area covered by the permission.
No principle of abandonment of planning permissions
The developer’s argument that Pilkington should be analysed as a case resting on a principle of abandonment was rejected. The Supreme Court does not accept “that there is any principle in planning law whereby a planning permission can be abandoned” (paragraph 35).
I hope this brief initial run down is a helpful introduction to what will in due course be a very familiar text for all of us. More anon I’m sure.
SIMONICITY 